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It might be well in this connection to define "a violation of the rights and interests of the littoral state." The Institute committed itself, however, as to the status of foreign merchantmen in port.

Ships of all nationalities, by the fact of being in territorial waters, unless only passing through, are subject to the jurisdiction of the bordering state (article 8).

These declarations are entitled to great weight.

The principle that every nation has full and exclusive jurisdiction within its recognized limits is well established.61 Is it not hard enough to constitute a custom a rule of international law, and are there not great tangles of international problems upon which the hand of man has scarcely been laid? Why discuss, much less abrogate, a rule of international conduct unless its gross injustice is conclusively proven? Does not the old rule serve the needs of nations? As between the nationality of the ship, and the nationality of the place, the latter should govern. As long as nations jealously guard what may be called exclusive sovereignty jurisdiction, and are loath to surrender any absolute power which appears to effect a curtailment of their exclusive right to finally shape their own policies and to deal with their own matters, unless a corresponding privilege is accorded, no derogation of the principles of complete sovereignty can be imposed by one upon another without great danger. Though every individual has been compelled to surrender certain liberties for the good of the state, the nations have not surrendered sovereign rights for the good of all nations. But the time is rapidly approaching when, by uniform action, nations will gladly approve a limitation of the doctrine of absolute sovereignty, and in the interest of a uniform system of law and of the common good of nations, make surrender of certain powers.

POWER TO ALTER JURISDICTION OF WATERS

It would be unpardonable not to deal with one more phase of the Can a nation rightfully (a) convert a high sea, or any por

matter.

61 W. E. Hall: International Law, pp. 167, 170. 1880; Halleck: Elements of International Law, p. 95; Thos. E. Holland: Studies of International Law, p. 156. 1898; Thos. A. Walker, Manual of International Law, 1895.

tion thereof, into a territorial water, or (b) convert a territorial water into a high sea?

(a) Generally speaking, no. History shows that as many nation: perfected their naval equipment, they endeavored to maintain exclusive jurisdiction over parts of the high sea.62 For nearly three hundred years publicists have unanimously held that such claims were contrary to the law of nations. It is also doubtful whether a nation. has the right to arbitrarily extend its marginal sea beyond the marine league, the limit set by the law of nations. The long range of the modern gun may yet bring this question into prominence. We have seen that high seas are incapable of being owned and that rights of navigation, fishing, and commerce thereon, when once acquired, can not be subject to limitation. The law governing such waters is to be recognized, not imposed. If a nation, acting by itself, has no power to impose limitations upon waters where all nations have rights, it is doubtful whether nations jointly can accomplish the feat. Can many acting jointly, rightfully undertake to accomplish that, which, if done by one, would be void? The recognition of such a principle as applicable to international law, would surely be productive of great harm. It is also obvious that, if the marginal sea is extended, world peace will receive a great blow.

(b) Generally speaking, yes. In so doing, however, the nation is in the peculiar position of creating a thing which can not be owned. We see no objection to a nation dedicating territorial waters to the perpetual use of nations, present and future, provided no other nation has claims of interest or title, under treaty or otherwise, in such waters. If they have they also should join. Where such action is taken, the donors have no rights not common to every other nation. The right to make treaties and exclude other nations is irrevocably lost. The puzzle is, how the United States can convert the Great Lakes into "high seas" when only a part of them are within its jurisdiction. We are aware of no Canadian legislation or decision altering the Canadian division of the Great Lakes in conformity to the American view. Clearly the United States has no power in the premises.

62 See any work on international law.

CONCLUSION

Considering the changes which have been made during the last century influencing the law governing the Great Lakes, many conjectures as to what it will be may properly arise. It seems certain that it can not remain in its present unsettled condition. The bad feature of the whole matter is the uncertainty which has attached to questions of jurisdiction upon the Great Lakes and the consequent expense attendant upon taking cases through the courts with no assurance that former decisions of the same court will be considered or, much less, govern in a case at bar. Commercial interests demand that the law should be positive.

The gravest concern is that of the student of constitutional law. The Constitution of the United States should be interpreted according to the rules of construction applicable to statutes.63 We should ascertain the understanding of those who, at the time, were chiefly instrumental in its creation. Who are in better position to know or explain the meaning of a given clause in an instrument than those who were present at the time, who listened to debates and arguments, and who were thoroughly conversant with the intricate problems which challenged the attention of the period's greatest minds?

Before the adoption of the Constitution, Alexander Hamilton, James Madison, and John Jay published a series of articles now known as the "Federalist," for the purpose of explaining the functions and powers of the new instrument. They showed that the admiralty and maritime jurisdiction of the United States, under the Constitution, was a power to be exercised outside, rather than inside, the Union.

The most bigoted idolizers of the state authority have not thus far shown a disposition to deny the National judiciary the cognizance of maritime causes. These so generally depend upon the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. 64

The Constitution of the United States has lasted, because it was based upon the usages and customs of England, as modified by the experience

63 Cases cited New U. S. Dig. L. Ed., vol. 2, pp. 1573-1588.

64 Alexander Hamilton, 10th Par. No. 80, "The Federalist." Thompson and Homans, Ed. 1831. Also No. 11.

* * *

of the Colonies, and the Constitution will last as long as it answers the needs of its framers, and no longer. To understand the Constitution, English customs and usages must be studied and we must interpret the language of the Constitution in the light of its origin, as well as in the concrete case under investigation. It is the same with law.65

To hold that the Constitutional Convention foresaw the extension of maritime jurisdiction to the Great Lakes is not to make its members good statesmen and poor prophets, but good prophets and poor statesmen. As all the powers enumerated in the Constitution were delegated by the states, the federal government became a limited government. The states could not delegate any admiralty or maritime jurisdiction which they did not at the time possess. That which they had was no more or less than that which England implanted.

In the light of the discussion herein, one can not help but wonder to what extent Congress, with the Supreme Court to uphold it, may extend its jurisdiction within state boundaries. While the states have adjusted themselves to changed conditions, and their loss of jurisdiction along certain lines is not being openly deplored, there will come a time when to stretch rather than to amend the Constitution, in matters which involve great losses of state jurisdiction, will mean national unpleasantness. The unmistakable tendency of the times is the increase of federal jurisdiction in all matters of commerce, but in the gaining of an invisible goal, safety dictates that the spirit of the Constitutional Convention should be ever present to the jurist.

HARRY E. HUNT.

65 James Brown Scott, this Journal, vol. 2, No. 1, p. 3, and see also vol. 2, No. 2, p. 444.

THE REAL STATUS OF THE PANAMA CANAL AS REGARDS NEUTRALIZATION 1

I.

1

Preceding any intelligent discussion of the status of the Panama Canal regarding freedom of passage and inviolability in war, which have so generally and so loosely been spoken of as "neutralization" even in official documents of the latest date, it will be necessary first to examine the treaty obligations of the United States under which the Canal is now under construction, and which define the powers of control over it when it shall be finished.

The latest of these is the convention concluded November 18, 1903, by the late John Hay and Mr. Bunau-Varilla, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Panama. This convention was proclaimed on February 26, 1904, after due ratifications, its title being "Convention for the Construction of a Ship Canal." 2

Article I guarantees the independence of Panama by the United States.

In Article II Panama

grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal.

The width of the zone is ten miles, and it does not include the cities. and harbors of Panama and Colon, but does include the small islands

1 All but the fifth section of this paper was written about three and one-half years ago; that section was written about a year later. The whole is here printed substantially in its original form, and with no changes that affect the sense. In the THE AMERICAN JOURNAL OF INTERNATIONAL LAW for April, 1909, a distinguished retired officer of the Army published a paper on the same general subject in which conclusions are reached quite the contrary of those herein maintained. It seems worth while to present the opposite view-point to his in order that readers may have both before them, and form their own conclusions on a matter of wide interest to the nation, and particularly to the military services. — H. S. K.

2 Compilation of Treaties in Force, 1904, p. 609.

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